In Depth

The state’s new criminal code reconfigured crimes and punishments but while offenders may face different outcomes,
some will still languish in jail prior to trial because they do not have the money needed to be released.

Bail is the primary way defendants get out of jail in Indiana. Usually courts order offenders to either pay cash to the court
or use a bail agent to post a surety bond to get released from county detention. Those who do not have the money to pay bail
stay behind bars.

During the 2013 and 2014 sessions of the Indiana General Assembly, legislation was introduced that would have made small
changes but largely left the current bail system in place. The Indiana Supreme Court has since convened a special committee
to examine alternative pretrial release programs which would not end bail in Indiana but could significantly reduce its use.

The Committee to Study Evidence-Based Pretrial Release was established by Indiana Chief Justice Brent Dickson in December
2013. The Supreme Court wants a study and evaluation of the risk-assessment tools that are available to determine when pretrial
release is appropriate and under what conditions.

Criminal defense attorney Stephen Dillon makes a strong argument for change with the simple assertion that the state’s
current bail system is unfair. Rich defendants can get out of jail before their trial while poor defendants have to remain
in custody.

Dillon, chair of the Indiana State Bar Association Criminal Justice Section, is a member of the Supreme Court’s pretrial
study committee. Echoing the thinking behind evidence-based forms of pretrial release, he advocates basing the decision to
discharge not on money but on whether the defendant is a danger to the public or a flight risk.

Among the objectives the Supreme Court gave the study committee was finding a way to give all accused individuals access
to release regardless of their personal wealth. In addition, the court asked the committee to report on avenues to establish
a release system that is proportional to the risks the defendant presents; will enable offenders to continue their normal
lives and employment as much as possible; and will allow accused persons to receive treatment and rehabilitative services.

The 14-member study committee is made up of judges, prosecutors, defense attorneys, probation officers and state legislators.

Release based on risk

Pretrial release has become a key issue with the implementation of the new criminal code. Committee member State Rep. Jud
McMillin, R-Brookville, pointed out the study committee is addressing the concern that many local officials have about jail
overcrowding.

The new code aims to keep low-level, non-violent offenders in the county jails rather than place them in the Indiana Department
of Correction. Having some alternatives to bail could provide a better way to reduce the inmate population since a significant
proportion of people are currently in the local jails because they cannot afford the cash or surety bond, he said.

Both Dillon and McMillin noted the present bail system does not consider an offender’s risk of committing another crime
while on pretrial release. Instead, county jails have a bail schedule based on the level of offense. If the accused has the
money, the cell door can swing open.

In Kentucky, the process is different.

Within 24 hours of being arrested, every defendant undergoes a risk assessment that largely consists of a state and national
criminal background check as well as a brief interview. Then the defendant is ranked as being of low-, moderate- or high-risk,
and the pretrial officers make a recommendation to the local judge.

Next, the judge decides the terms of any pretrial release. While in all cases the bench has the discretion to add conditions,
generally low-risk offenders are released on recognizance and moderate-risk offenders are also released but monitored. Judges
are given complete discretion regarding high-risk offenders.

Bail is still an option, and judges can impose a monetary condition to release. However, the funds are paid directly to the
courts.

“Research has shown time and time again that posting money has no bearing on returning to court or risk to the public,”
said Tara Klute, general manager of the Kentucky Division of Pretrial Services.

The success of Kentucky’s program is clearly illustrated in the statistics. In fiscal year 2014, a total of 216,760
individuals were arrested in the Bluegrass State. Of the 68 percent who obtained pretrial release, 87 percent appeared for
court hearings and 92 percent did not commit another crime while on release.

Convincing all 92 counties

Northwest Indiana’s Porter County has had a supervised pretrial release program for more than 20 years. Defendants
are classified as low-, moderate- or high-risk and assessed for whether they need treatment for a substance abuse or mental
health issue.

According to Stephen Meyer, chief probation officer at the Porter County Probation Department, the local jail is one of the
few in the state that is under capacity. Also, even though Porter County is the ninth-largest county in Indiana, 40 other
counties are sending more inmates to the DOC.

Meyer, who is a member of the study committee, said counties are receptive to looking at what can be done better, yet they
can be resistant to change. That gives the committee a “daunting task,” he said, of trying to pull all the players
together and consider alternatives to bail.

Klute attributes Kentucky’s ability to get all its counties to comply with pretrial release to the Legislature. The
Statehouse passed measures outlawing commercial bail bonds in 1976 and mandated judges use pretrial risk assessment reports
in 2011.

Getting all 92 counties in Indiana to agree to institute alternatives to bail will be difficult, McMillin acknowledged. As
happened in Kentucky, he believes the Indiana General Assembly will have to legislatively address pretrial release.

The committee has previously met twice and plans to meet again in August. No deadline has been set for the committee to submit
its report to the Supreme Court.•

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